Kroger Grocery & Baking Co. v. Dempsey

• Decision Date: 14 October 1940
• Docket Number: No. 4-6047.,4-6047.
• Citation: 143 S.W.2d 564
• Parties: KROGER GROCERY & BAKING CO. v. DEMPSEY.
• Court: Arkansas Supreme Court

143 S.W.2d 564

KROGER GROCERY & BAKING CO. v. DEMPSEY.

No. 4-6047.

Supreme Court of Arkansas.

October 14, 1940.

Appeal from Circuit Court, Nevada County; Dexter Bush, Judge.

Action by Louella Dempsey against the Kroger Grocery & Baking Company for personal injuries. Judgment for plaintiff, and defendant appeals.

Reversed, and cause dismissed.

Owens, Ehrman & McHaney and John M. Lofton, Jr., all of Little Rock, for appellant.

James R. Bush, of Prescott, for appellee.

HOLT, Justice.

Appellee brought suit against appellant to recover damages for physical injuries alleged to have been sustained by her from a fall she suffered while a customer in appellant's grocery store in Prescott, Arkansas. The negligence complained of was that on the 30th day of September, 1939, at or about 8:30 p. m., the plaintiff entered defendant's store to make a purchase; that the defendant, its agents, servants and employees, negligently permitted a banana peel to be and remain upon the floor in said store; that the plaintiff, while in the exercise of ordinary, reasonable care for her own safety, stepped upon said banana peel, fell, and received painful injuries as a result thereof.

The answer was a general denial and a plea of contributory negligence on the part of appellee.

Trial resulted in a verdict and judgment in favor of appellee in the sum of $400.

Appellant contends that there was no substantial evidence to take the case to the jury, and it is our view that this contention must be sustained.

Only two witnesses testified on behalf of appellee. The appellee, Louella Dempsey, and a physician who examined her sometime after her injury. The testimony of the physician goes only to the extent and nature of appellee's injury. He was not present and knew nothing about how the injury occurred.

The testimony of appellee discloses that she is a colored woman 39 years of age and weighs about 200 pounds. On the occasion of the injury she entered appellant's store for the purpose of purchasing merchandise, and fell after stepping upon a banana peel. We quote from her testimony:

"Q. Just tell the jury what happened after you got in the store. A. I went right in and was going to get some things and just as I walked in right between the counter and the wall — middleways, you would say — I stepped on this banana peeling. Of course, I wasn't watching for a banana peeling — I had my mind on what I was going to buy and it happened so quick — I went down.

"Q. You stepped on a banana peel? A. Yes, sir.

"Q. After you fell, did you see the banana peel? A. I was lying on the floor and I was hurting so bad and Mr. Hillis' wife told him a woman had fallen and he picked up the banana peel — Mr. Hillis did hisself.

"Q. He picked up the banana peel you stepped on? A. Yes, sir, he did. I was on the floor. Mrs. Hillis came to me a good while after that and said, `Are you hurt?' and I said, `Yes, I am hurt' and I got up and stood by the counter a good, long while — by the checking counter — and then I went on out to the front and I stood right out of the door and Mrs. Hillis come and asked me if I wanted her to get something for me and I said, `No' and in a few minutes Steve Johnson come by in his taxi and I said, `I had an accident and I want to get you to carry me home', and he said, `My car is down the street', and he was so long coming back I went on Home".

Appellee further testified in substance that she was able to walk on home after her accident, and that in stepping upon the banana peel she fell upon her back and her feet slipped out in front of her. That she stretched out and "laid out in the store". That her fall took place between the checking stand and the wall about "middleways". That there were other people around in the store at the time of her fall, and that there was no one at the exact place she fell except her two girls and her. That a Mrs. Meyers was at the checking counter checking out her groceries when she fell, and that some boys were over in the corner of the store near the place at which she sustained her fall.

Mrs. Meyers, whom appellee saw at the checking counter, testified that she was in the Kroger store at the time that Louella Dempsey fell. She did not see the fall, as Louella fell just behind her. That she heard the noise, looked around, and saw her upon the floor; that she knew the exact spot upon which Louella Dempsey fell. Quoting from her testimony:

"Q. You state that you saw her on the floor where she fell. I will ask you if you had, immediately prior to that time, walked over that same spot or place where she had fallen in the store? A. Yes, sir.

"Q. How long before would you say? A. I wouldn't think it was any more than a minute or so.

"Q. A minute or so? A. Yes, sir.

"Q. In passing over that particular place, did you, Mrs. Meyers, see a banana peel or foreign object on the floor? A. No, sir.

"Q. You didn't step on anything or fall on anything? A. No, sir.

"Q. Whether or not it dropped after you passed over that place, you don't know? A. No, sir".

Mr. Hillis, manager of appellant's store, testified in substance that on Saturdays the store is usually swept from five to seven times a day, and that they always watch the store for articles falling on the floor, because he knew that foreign objects such as banana peels were dangerous, and instructed his employees to keep the floor clean, and that he did everything possible to maintain his store in a clean and safe condition, and that on September 30, 1939, he had kept his store clean, and had exercised every precaution within his knowledge to make the store clean and safe for the customers. On cross-examination Hillis testified that the reason for sweeping the store many times a day was because they handled green and fresh vegetables and that that stuff got upon the floor and it was necessary to...